Clinton Rebuffs Subpoena Attorney-Client Privilege Invoked In Whitewater Probe

The White House Tuesday formally refused to release records subpoenaed by the Senate Whitewater committee, saying they are protected under the attorney-client privilege, a claim of confidentiality President Clinton has said in the past he did not expect to invoke.

The White House also said the notes taken by former White House associate counsel William Kennedy during a Nov. 5, 1993, meeting are protected by executive privilege, the legal principle first recognized during the Watergate scandal that protects the confidentiality of the president’s decision-making process. But the White House said it is not now making that legal claim.

The White House said Tuesday night that Clinton has already offered to turn over to the committee the information it needs. “We now have no choice but to say enough is enough,” it said in a statement.

The committee and the Senate now are expected to vote to enforce the subpoena. A full-scale legal battle, in turn, could bring the simmering Whitewater matter to full political boil again as the president launches his re-election campaign.

The committee is seeking extensive notes that Kennedy took during a meeting he attended with three other White House officials and three private attorneys for the Clintons. The meeting took place less than a week after the news broke that the president and Hillary Rodham Clinton were named in requests for a criminal investigation that the savings and loan cleanup agency had sent to the Justice Department.

Members of the committee have said the meeting is crucial to understanding a principal issue they are investigating: What use the White House made of information it improperly obtained from federal agencies that were conducting criminal investigations touching on the Clintons. The panel has been looking into whether White House officials used confidential information to try to protect the Clintons from exposure in probes of a failed Arkansas thrift and a loan company backed by the Small Business Administration.

The Whitewater committee voted last Friday to issue the subpoenas after negotiations between the committee staff and the Clintons’ lawyers broke down. In an interview in March 1994, Clinton was asked whether he would claim executive or attorney-client privilege on Whitewater matters. “My interest … is to get the facts out. … So it’s hard for me to imagine a circumstance in which that would be an appropriate thing for me to do,” he replied.

Sen. Alfonse M. D’Amato, R-N.Y., chairman of the Whitewater committee, predicted the White House’s refusal to turn over the records “will ultimately be damaging to the president and first lady.” He said in a statement that it was “an attempt to stonewall our committee and the public will be outraged.”

The Clintons’ personal attorney, David Kendall, in whose offices at Williams & Connolly the meeting was held, sent a 46-page legal memo to the committee outlining his reasons for considering the meeting protected by the attorney-client privilege. White House lawyers sent a separate legal memo that also argued the meeting would be covered by executive privilege if it chose to make such a claim.

Those attending the Nov. 5 meeting included former White House counsel Bernard Nussbaum and one of his associates, Neil Eggleston; Bruce Lindsey, a presidential political aide in charge then of Whitewater damage control; and two other private attorneys.

Said Kendall’s memo: “If they make the notes public, partisan investigators will next claim that they have waived the confidentiality of (their) entire relationship (with Kendall).” In addition, he wrote, “a president must be able to receive confidential legal advice about any personal matter including personal matters that might affect his public duties.”

Some legal experts said Tuesday that the Clintons’ practice of having government lawyers do their private legal work could make it difficult to assert the attorney-client privilege. Further, several experts said, if White House officials obtained confidential government investigative information improperly or inadvertently, it should not have been given to private attorneys representing potential defendants.

The White House long has contended that it obtained investigative information simply for the purpose of responding to expected press inquiries, and not to thwart any investigations or improperly aid in a legal defense.

Handwritten notes made by White House aides in October 1993, a month earlier than the meeting in question, show however that they knew details about the investigation that would not surface in the media for many months. Those notes were turned over to Congress earlier this year.

If the White House does fall back on an executive privilege claim, it may have to show what government purpose is being served by protecting the discussion at the meeting.